Questions remain for same-sex couples after DOMA

Panel discussion held to address federal benefits eligibility for Alaskans

Marjorie J. Kaiser, a tax attorney from Anchorage, left, and Joshua Decker, the interim executive director of ACLU of Alaska, right, listen as family law attorney Allison Mendel speaks during a panel discussion at McPhetres Hall on Saturday about the recent U.S. Supreme Court landmark reversal of the Defense of Marriage Act and how it will impact same-sex couples in Alaska.

Amid belated celebrations held in Juneau this weekend that heralded the U.S. Supreme Court’s June 26 ruling on the unconstitutionality of a section of the Defense of Marriage Act (DOMA), a smaller group of about 30 members and supporters of the gay community gathered in a quiet church hall for a panel discussion about how the decision may affect their daily lives.

Audience members for more than two hours peppered the panelists — a certified public accountant, a family law attorney and the head of the American Civil Liberties Union Alaska chapter, all based out of Anchorage — with questions about federal benefits and programs that they may now have access to if they are married.

The U.S. v. Windsor decision repealed Section 3 of DOMA, which had excluded married same-sex couples from many federal protections available to opposite-sex couples. Instantly regarded as a landmark decision and a victory for the gay rights movement, one result of the lawsuit has been a sudden rapid expansion in federal benefits.

Couples in states that recognize same-sex marriages became eligible for federal benefits immediately after the decision was handed down.

But for those in states such as Alaska that do not recognize same-sex marriages, sometimes called “non-recognition states”, it’s not as clear cut who is eligible for what.

Panelist and family law attorney Allison Mendel explained that federal recognition and access may vary depending on the program, but that things are happening so fast in reaction to Windsor that even the fact sheet she printed out three weeks ago is already outdated.

“Things are in such a state of flux that it’s hard to know what the answers are,” she told the crowd.

The Supreme Court decision has triggered a “rampage of litigation” from same-sex couples across the country from Ohio to Arkansas to Louisiana seeking clarification on the ruling, which is why the panelists warned the crowd the answers to their questions will likely be, “We don’t know yet.”

Lingering questions

Inside McPhetres Hall at Holy Trinity Episcopal Church on Saturday afternoon, couples were eager to learn about their potential access to health insurance, Social Security, family medical leave and federal taxes returns.

Daniel Collison, a 54-year-old state employee in Juneau planning on soon marrying his partner of 13 years, asked about availability of retirements benefits.

“The second thing is that I’m probably going to retire several years before my partner, and at that point in time, I would like to have access to my partner’s health benefits,” he added in an interview. “But right now we would be taxed on those health benefits whereas a straight married couple would not.”

A woman seated in the back of the church hall asked how to acquire Social Security spousal benefits in light of the existing regulation that says the state of residence, and laws thereof, control whether you are recognized as married or not. Social Security is one of the federal programs that defers to state law to assess marital status, and thus same-sex married couples in non-recognition states may not receive the benefit despite Windsor.

Another issue arising out of Social Security, and also federal income taxes, is that customarily the government decides whether a person is married based on the place of residence. Gay rights advocates argue that it should be based on the place of celebration, or marriage, so that no matter where the couple lives their marriage is valid.

Panelist CPA Marjorie Kaiser said the IRS is expected to announce a policy decision “any day now” on whether to recognize same-sex couples based on state of residence or by state of celebration.

That decision in part will affect whether same-sex married couples can file joint federal income tax returns, both retroactively and in the future, whereas now it can only be done in states that recognize same-sex marriage.

“I hope that greater wisdom will prevail with the Internal Revenue Service and they’ll say we can’t do this on a state-by-state basis because it becomes ridiculous very quickly,” Kaiser said, adding that she believes marriage equality issues will come about due to tax issues rather than constitutional issues, as it did in Windsor.

“So are people who have been married going to be able to re-file back tax returns?” one woman in the crowd asked.

“Right now, the best answer I can give on all of these things is ‘We don’t know,’” Kaiser replied. “There is a possibility that they could say we’re not letting anything retroactive happen, which I don’t think really makes sense, especially if the whole thing is deemed unconstitutional. But it’s possible.”

Just this week, Kaiser filed her first joint tax return for a same-sex couple seeking a refund from their 2009 returns, which were filed in September 2010. Income tax returns remain open for three years after the filing date to be amended, which allowed the couple to re-file a joint return by September 2013.

“With these two individuals, one is a very highly paid individual, and the other had a much lower salary,” she said. “So by filing together, they actually will save in some years a significant amount of money.”

If the IRS rejects their claim, then it will simply be thrown out. If not, it will preserve that couple’s right to get back their refund for 2009.

While many questions could not be answered due to the fast-changing legal landscape surrounding the issues, Mendel said she hopes the people affected by the ruling in Juneau will seek counsel to see what benefits might be available to them.

“We have been outside of the law in so many ways for so long that people, we just tend not to think about our eligibility for benefits and whether we would qualify for this, or qualify for that,” she said.

ACLU

Others in the audience, such as Mary Fitzgerald, a 46-year-old who recently moved to Alaska from Utah with her partner, attended the panel to learn about what other court cases are out there that might affect Alaskans.

“We’re still understanding what our rights are at this point,” she said in an interview.

The ACLU Alaska chapter’s Interim Executive Director Joshua Decker said there are currently two court cases out of Nevada and Hawaii before the 9th Circuit Court of Appeals (which covers Alaska, California, Oregon and Washington and other areas of jurisdiction) challenging those states constitutional amendments prohibiting same-sex marriage. A decision is expected in about a year, he said.

“The wheels of justice turn very slowly,” he said. “So this is not a quick thing, but we should know at least in this part of the country what the U.S. government’s decision is about whether it’s OK in states to ban equal marriage.”

Alaska is not likely to bring a high-profile case before the Supreme Court challenging the same-sex marriage ban, Decker said, saying there is a lack of ground support for same-sex marriage in Alaska compared to other states.

He cited a recent poll that said while two-thirds of Alaskans believe there should be some legal recognition of same-sex couples, the majority thought it should not be marriage.

“Alaska is probably not going to be at the forefront because this is not that state,” he said.

Instead, the strategy for the ACLU in Alaska is to “chip away” at the constitutional amendment rather than attacking it head-on, he said.

DOMA, Section 2

Gay right advocates in Juneau say while the repeal of DOMA Section 3 is something to celebrate, there’s much more work to do.

Lin Davis, a 70-year-old advocate who has been involved with the equality movement since the 1970s and helped organize Saturday’s panel, points to Section 2 of DOMA as a glaring example. That section allows states to refuse to recognize same-sex marriages from other states.

“It’s a turning point, but we still have more steps,” Davis said.

Mendel said the Windsor decision did not address that section on DOMA and it still remains on the books.

She said, “When and where that falls apart is a whole other question.”